By Prof. Dr. I Made Suwitra, SH., MH

Professor at the Faculty of Law Universitas Warmadewa Denpasar, Bali, Indonesia

Email: madesuwitra27@gmail.com

Balinese customary law contains many categories of sanctions, including danda arta (dedosan), panikel urunan utawi panikel danda, nunas pengampura/iwang, upakara penyangaskara, rerampagan and kasepekang.

Another sanction, known as awig-awig, is a kind of legal norm that is attached to the word adat, distinguishing it from normal custom. The aim of awig-awig, which coexists with state laws, is to ensure that order can be maintained and obeyed in interactions between villagers, both as individuals and as groups within village areas, as well as interactions with other groups in the country.

The function of sanctions in customary law is to restore balance, not to provide recompense as "punishment". Sanctions can also eliminate state law "independence" in the Criminal Code in the form of fines, confinement, prison and the death penalty. The restoration of balance in customary law is interpreted as an effort to make those who break the norms maintain a good manner and carry out their activities as before. To achieve the balance, the wisdom of traditional village leaders is also needed in leading the meeting carrying out the functions of judicial authority. Likewise, villagers can carry out the oversight function as "judges" in determining aspects of wrongdoing and the relevance of sanctions, so that the process of enforcing awig-awig runs smoothly and reflects justice, certainty and expediency. Some cases of enforcement of awig-awig through the imposition of customary sanctions, especially in the imposition of kasepekang sanctions, have not shown that they are not in accordance with the purpose of restoring balance in the life of customary law communities (krama desa). The implementation can even cause new problems, enforcing the pawnshop motto "solving problems without problems”. This is because the standards and choices regarding the relevance of sanctions are not yet harmonious, proper and compatible.

Many people disagree with the traditional kasepekang sanction because its application causes problems and it has been determined that it violates human rights. As a result, kasepekang sanctions have been prohibited. The government has even prohibited the awig-awig from arranging the traditional kasepekang sanctions, which is extreme. This prohibition was regulated through decisions of customary institutions such as the MUDP of Bali province. Not infrequently, some academicians consider kasepekang to not be in accordance with the values ​​of legal humanism. Is the customary sanction of kasepekang no longer appropriate to be used as a reference in enforcing violations of customary law in Bali? Why is it that many see this sanction as resulting in bad judgments, being irrelevant to customary law in Bali, being inhumane and violating human rights? Does it really need to be removed? With these questions in mind, a study based on scientific research is needed to analyze various factors and determine whether kasekpekang is fair and humane in the customary village awig-awig. This research brings its own challenges as understanding customary law is not based on doctrine but is based on a sense of propriety that grows and is maintained through feelings and values that are ​​hidden in various symbols and used in accordance with traditions and dresta in each traditional village. An in-depth study is needed to identify the values ​​of the otohton, which is owned by the local community and cannot be ignored. Observation of kasepekang in several traditional villages, including Jero Kuta Pejeng Traditional Village, Taro, Demayu Gianyar, Buitan Selumbung Village, Lili Gundi Karangasem, Julah Village, Lemukih, Anturan, Panji, Bebetin Buleleng, Desa Peninjoan, Landih Bangli, Badung Melinggih Village, Gianyar, Yeh Gangga Tabanan and Pemogan Denpasar, has shown that the kasepekang sanction is inconsistent with the three principles of solving customary problems, namely: the principles of being harmonious, proper and compatible. The implication is that it the customary kasepekang sanctions are no longer suitable and violate human rights and other state laws. Even though the sanctions themselves were not the objects of observation, the problem was shown to be a misguided way of thinking in the processes and procedures. Imposing customary sanctions in any form should not be based on feelings of emotion in the form of individual sentiments or feelings of hostility or revenge. According to state law, this should be carried out by the person who is the victim of the imposition of the kasepekang sanction. Based on this condition, it appears that the imposition of sanctions based on kasepekang is not in accordance with standards, especially in assessing the element of error that arises from emotion and subjectiveness. The effort to restore the balance so that communal integrity can be maintained is not based on goals and benefits, and often does not follow the proper procedures, deviating from the principles of properness, harmony and compatibility. This idea is relevant to what Bismar Siregar once stated: no matter how good the law is, if it is enforced poorly, then the law will not be successful. On the other hand, no matter how bad the law is, if it is upheld by clean law enforcement officers, then the law will be good. Therefore, whether the kasepekang sanction is relevant will depend on whether the Prajuru Adat and the citizens (krama desa) are virtuous in the decision-making process through Paruman.

The existence of the kasepekang sanction in the awig-awig of traditional villages does not necessarily violate human rights. However, it is necessary to pay close attention to the history of the existence of the sanctions in awig-awig because in the context of creating laws, kasepekang has gone through a long formation process to develop a sense of propriety, in a decision which Ter Haar calls "beslissingenleer". So, the implementation of customary laws called awig-awig is done through a long process. Kesepekang sanctions certainly change over time as they have an elastic and dynamic nature. The changes occur through an evolutionary process and are based on a sense of propriety by the supporting community in accordance with the nature of customary law.

In research conducted by Koesnoe, it was found that there were three working principles of customary law. The three principles involve harmony, compatibility and propriety. These principles should be used to solve any problems that arise in traditional villages. It is important to implement them so that customary law can be used in a successful way, and although they should not be mixed with modern legal thinking, they can coexist with state laws in their implementation. Hopefully, the existence of customary sanctions will not be misused to enforce customary law, so that there will not be violations of state law as a result of misunderstandings of the core principles.